Arbuthnot v. Whirlpool Canada LP, 2019 ONSC 5239

Court File and Parties

COURT FILE NO.: CV-19-00616397-00CP

DATE: 20190910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BEVERLEY ARBUTHNOT, ANGELE CHAREST AND DEBORAH PLESTER, on behalf of themselves and all others SIMILARLY SITUATED

Plaintiffs

• and -

WHIRLPOOL CANADA LP, WHIRLPOOL CORPORATION, and WHIRLPOOL PROPERTIES, INC.

Defendants

Counsel: Jia Wang for the Plaintiffs

Proceeding under the Class Proceedings Act, 1992

HEARD: In writing

REASONS FOR DECISION

PERELL, J.

[1]

Introduction

Rule 14.08 (1) of the Rules of Civil Procedure stipulates that where an action is commenced by Statement of Claim, the pleading shall be served within six months after it is issued. This is a motion to extend the time for service of the Statement of Claim for an additional six-month period to allow the Plaintiffs to obtain after-the-event (“ATE”) insurance or third-party funding for their proposed class action.

2In this proposed class action under the Class Proceedings Act, 1992,¹ the proposed Representative Plaintiffs, Beverley Arbuthnot, Angele Charest, and Deborah Plester, sue Whirlpool Canada LP, Whirlpool Corporation, and Whirlpool Properties, Inc., (collectively “Whirlpool”) for misrepresentation, breach of contract, with respect to self-cleaning ovens that allegedly do not self-clean.

3At present, Whirlpool is unaware that the Statement of Claim was issued on March 18, 2019 because they have yet to be served. The six-month period for serving the claim, as prescribed by Rule 14.08(1), ends on September 18, 2019.

[4]

Background

In 2015, three parallel class actions were commenced in the United States District Court of the Eastern District of Michigan by the U.S. law firm of Robbins Geller Rudman & Dowd LLP; namely: (1) Schechner, et al. v. Whirlpool Corp., Case No. 2:16-cv-12409-SJM-RSW; (2) Danielkiewicz, et al. v. Whirlpool Corp., Case No. 2:18-cv-13599-SJM-RSW; and (3) Angerman, et al. v. Whirlpool Corp., Case No. 2:18-cv-13832-SJM-RSW.

5On November 6, 2018, counsel from Robbins Geller Rudman & Dowd LLP contacted J. Gardner Hodder, the principal of Hodder Wang LLP and advised that Canadian consumers had contacted the American firm about representation in Canada. As a result of this contact, the Holder Wang LLP firm signed a Litigation Support Services Agreement with the American firm on January 10, 2019.

6On March 4 and 5, 2019, Mesdames Arbuthnot, Charest, and Plester, signed Contingency Fee Retainer Agreements with Hodder Wang LLP. The agreements annex and incorporate the Litigation Support Agreement.

7The Contingency Fee Retainer Agreement includes a pre-condition that counsel must obtain for the clients ATE insurance coverage before proceeding with the action. ATE insurance coverage is a financing product that provides coverage for any adverse costs awarded against the representative plaintiffs.

8On March 14, 2019, Mesdames Arbuthnot, Charest, and Plester applied to Judge Global for ATE insurance coverage.

9To stop the running of limitation periods, on March 18, 2019, Mesdames Arbuthnot, Charest, and Plester issued their Statement of Claim.

10On June 4, 2019, Judge Global declined to provide ATE coverage.

11Counsel for Mesdames Arbuthnot, Charest, and Plester are making inquiries of other ATE carriers and have made an application to the Class Proceedings Fund for third party funding.

12The Class Proceedings Committee hearings for funding are presently scheduled in January 2020.

13In the meantime, on August 13, 2019, the Honourable Stephen J. Murphy dismissed the motion for certification in Schechner, et al. v. Whirlpool Corp. This decision is under appeal.

14In September 2019, Mesdames Arbuthnot, Charest, and Plester brought an ex parte motion in writing for an extension of time for the service of the Statement of Claim.

[15]

Analysis

Although their motion is notionally for an extension of time to serve the Statement of Claim, the motion is in aid of obtaining the court’s approval for litigation support in the class action. In Fehr v. Sun Life Assurance Co. of Canada,² I held that the defendant should be given notice of a third-party funding motion, and it should also receive the motion material to be relied on for the motion, and it should be permitted to participate at the hearing.

16Thus, it is my opinion that Whirlpool ought to have been given notice of the motion to extend the time for service of the Statement of Claim.

17That said, I am nevertheless, pursuant to rule 37.07 (5)(c) granting Mesdames Arbuthnot, Charest, and Plester the relief they seek subject to terms. Rule 37.07 (5) provides:

Where Notice Ought to Have Been Served

(5) Where it appears to the court that the notice of motion ought to have been served on a person who has not been served, the court may,

(a) dismiss the motion or dismiss it only against the person who was not served;

(b) adjourn the motion and direct that the notice of motion be served on the person; or

(c) direct that any order made on the motion be served on the person.

[18]

Disposition

I order that the time for service of the Statement of Claim on the defendants be extended to March 18, 2020. I further order that the motion record, the order, and these Reasons for Decision be served on the defendants.

Perell, J.

Footnotes

1. 1S.O. 1992, c. 6.
2. 22012 ONSC 2715.